Opposition — Dinko v. United States

Nos. 78-271 and 78-469

— aR ESES VY) K JR, CLERK

In the Supreme Court of the United States

OcTOBER TERM, 1978

ANDREW DINKO, PETITIONER

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UNITED STATES OF AMERICA

PATRICIA DINKO, PETITIONER

A

UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

Wave H. McCree, Jr.

Solicitor General

Puitie B. HEYMANN

Assistant Attorney General

Jerome M, Fert

CHRISTIAN F, Vissers

Attorneys

Department of Justice

Washington, D.C, 20530

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In the Supreme Court of the United States

OCTOBER TERM, 1978

No, 78-271

ANDREW DINKO, PETITIONER

".

UNITED STATES OF AMERICA

No. 78-469

PATRICIA DINKO, PETITIONER

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UNITED STATES OF AMERICA

ON PETITIONS FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

IN OPPOSITION

OPINIONS BELOW

The order of the court of appeals affirming petitioners’

convictions (Pet. App. 14-16)! is unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 17, 1978. Petitions for rehearing were denied on

Pet, App.” refers to the appendix in No, 78-271

(1)

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July 11, 1978 (Pet. App. 17-20). The petition for a writ of

certiorari in No. 78-271 was filed on August 17, 1978, and

the petition in No. 78-469 was filed on September 19,

1978. Both petitions are therefore out of time under Rule

22(2) of the Rules of this Court. The jurisdiction of this

Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED

|. Whether petitioners, in a joint trial in which each

was separately represented, were denied the effective

assistance of counsel because only one of the petitioners’

attorneys actively presented the joint defense at trial.

2. Whether the quality of petitioners’ representation at

trial was so low as to deny them the effective assistance of

counsel,

STATEMENT

Following a jury trial in the United States District

Court for the Eastern District of New York, petitioners

were convicted of possession of heroin and conspiracy to

distribute it, in violation of 21 U.S.C. 841(a,(1) and 846.

Petitioner Andrew Dinko was sentenced to a five-year

term of imprisonment, to be followed by five years of

special parole. His wife, petitioner Patricia Dinko, was

sentenced to five years’ imprisonment, the execution of

which was suspended. She was placed on probation for

five years, sentenced to a five-year term of special parole,

and fined $3,000. The court of appeals affirmed by order

(Pet. App. 14-16).

In September 1971 and for some time thereafter,

petitioners operated a heroin distribution business from

their home in Queens, New York. Among their customers

was Charles Johnson, who purchased substantial quan-

tities of heroin from the Dinkos on various occasions

between 1971 and 1973 (Tr. 38-109). During these sales to

Johnson, Patricia Dinko measured out the drugs while

Andrew Dinko cetiected the money (Tr. 73, 75).

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In April 1973, Johnson became a iniddleman for the

sale of heroin by the Dinkos to undercover narcotics

agents, who were posing as out-of-town drug dealers (Tr.

80-88). In return for an ounce of heroin supplied to him

by petitioners, Johnson received $1.200 from Drug

Enforcement Administration agent Henry Segar (Tr. 88-

90). In September 1973. Johnson was given $2.000 by

Segar as partial payment for an eighth of a kilogram of

heroin. Johnson went to the Dinkos’ home, where he

exchanged the money for a package containing the drugs.

He delivered the package to Segar, who in turn paid

Johnson the balance of $2,500. for transmittal to

petitioner Andrew Dinko (Tr. 96-103).°

The testimony of the undercover agents and a police

officer who had maintained visual surveillance of the

Dinko residence corroborated Johnson's account of his

dealings with the agents during the period from April to

November 1973 (Tr. 203-275, 353-370, 377-399). Further-

more, the agents related numerous statements by Johnson

and other narcotics dealers made during the course of the

undercover operation, implicating the Dinkos in the

heroin distribution conspiracy (Tr. 210, 222, 240). In a

recorded telephone conversation, co-defendant Joseph

Boyd, also a drug trafficker, provided Segar with a

telephone number that he said belonged to his heroin

supplier (Tr. 264-269). The telephone number was that of

the Dinko residence (Tr. 404-405). Segar ultimately was

able to arrange a face-to-face meeting with Patricia

Dinko. During this encounter, the parties discussed

Segar’s proposed purchase of a full kilogram of heroin

and agreed upon a tentative purchase price.’ The sale was

never consummated, however, as the DEA did not release

the necessary funds (Tr. 269-275).

‘This transaction was the basis of the substantive possession count

against petitioners.

‘Petitioner Andrew Dinko was observed maintaining surveillance

while his wife and Segar were engaged in conversation (Tr, 402-403).

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Testifying in her own behalf, Patricia Dinko provided a

defense for both herself and her husband, who did not

testify. According to Mrs, Dinko, her encounter with

undercover agent Segar was a consequence of her

husband's bitterly contested and unsuccessful quest for

the presidency of the National Maritime Union. She

testified that a campaign worker informed her that certain

drug dealers were trying to contact the Dinkos in order to

purchase drugs from them (Tr. 498-500). Since Patricia

Dinko maintained that neither she nor her husband had

ever had any involvement with drugs, she suspected that

the reported effort by narcotics distributors to reach

Andrew Dinko was part of a scheme devised by Dinko’s

union opponents to discredit him by linking him with the

drug trade (Tr. 474-475, 481, 512-516). Accordingly, she

acknowledged that she had arranged a meeting with

Segar, but she contended that she had met with him only

to determine whether he was acting for union officials

(Tr. 479, 546-550).

At trial petitioners were separately repfesented by

retained attorneys. Salvatore Quagliata served as counsel

for Andrew Dinko, and Thomas Manning represented

Patricia Dinko. Both attorneys were present throughout

the trial (Tr. 2, 146, 320, 425, 588, 665), although

Quagliata conducted the actual proceedings in the

courtroom on behalf of both defendants.

ARGUMENT

|. Petitioners contend that they were denied the right

to the effective assistance of counsel by virtue of the fact

that one attorney actively presented their joint defense at

trial. There is no merit to this contention.

The record reflects that from the first day of trial,

Thomas Manning represented petitioner Patricia Dinko

and Quagliata represented petitioner Andrew Dinko.

Manning was continuously present in the courtroom for

the duration of the trial. The fact that petitioners

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apparently determined that one attorney would handle the

trial proceedings does not constitute a denial of

representation by the other attorney,

Under the circumstances, it is reasonable to assume that

a determination was made that the Dinkos’ interests

would best be served by presenting a united front to the

jury. The election to have only one lawyer present the

defense case was a reasonable tactical decision that cannot

be said to have denied either petitioner the constitutional

right to effective representation.

Far from being prejudiced, the Dinkos gained a decided

benefit by pursuing a unitary defense. There was no

plausible defense tactic that would have permitted either

petitioner to minimize his or her involvement at the

expense of the other. The record shows that there was not

a single narcotics transaction or meeting shown by the

prosecution's evidence in which both Dinkos did not

participate. Although petitioner Andrew Dinko contends

that he was prejudiced when his wife testified at trial while

he did not, the pursuit of a joint defense in fact enabled

Andrew Dinko to benefit from his wife's testimony

without exposing himself to cross-examination. Patricia

Dinko’s testimony was entirely consistent with her

husband's defense that the two were in no way involved in

a drug conspiracy and that they were circumstantially

implicated—by virtue of Patricia’s meeting with Segar-

only as a result of her good-faith effort to forestall an

attack upon her husband's character by rival union

officials. Mrs. Dinko clearly sought to exculpate her

husband, steadfastly maintaining that he had no associa-

‘Even if petitioners had been represented by au single attorney, the

mere fact of joint representation is not per se violative of

constitutional guarantees of effective assistance of counsel. As this

Court has stated recently, “in some cases, certain advantages might

accure from joint representation.” Holloway v. Arkansas, 435 U.S.

475. 482 (1978).

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tion with drugs or the drug trade. Accordingly, Patricia’s

testimony was as helpful to her husband as it could

possibly have been under the circumstances.

The risks inherent in cases of joint representation of

two or more defendants by a single attorney do not apply

in cases such as this one, Where separately represented

defendants elect to pursue a joint defense. While we

believe that in cases of proposed joint representation, the

court should carefully inquire into the defendants’ waiver

of their right to separate representation, a similar pretrial

inquiry into the selection of defense strategy would plainly

be improper.’ Of course, if the election of a joint defense

in fact resulted in the lead attorney's using the occasion to

save his client at the expense of the other defendant, the

attorney for the victimized defendant would have an

obligation to protect his client, just as he would in any

case In which one defendant seeks to exculpate himself by

implicating his co-defendants. In this case, however, that

did not happen at all. Instead, the Dinkos’ joint defense

remained unitary from opening statement through sum-

mation. Thus, the principles applicable in joint repre-

sentation cases are not controlling here.

2. Petitioners also contend that the quality of their

representation at trial was so low as to compel the

reversal of their convictions. This claim is without merit.

While petitioners list several alleged detects in the conduct

of the defense at trial, it is highly unlikely that any of

‘Petitioner Patricia Dinko suggests that the court should have

conducted a waiver hearing at the point that counsel stated in

opening statement that both defendants would testify. We do not

know what there is about such a statement that should trigger an

inquiry by the court. In any event. however. in this case counsel did

not state that both defendants would testify. Instead. he stated that

the jury would hear “exactly what happened trom the mouth of the

defendants” (Tr. 24) and later added that he didn't know “whether

one [or] both of them will testify, but you'll hear from the defense.

Those people. probably both. maybe one will be enough” (Tr. 32).

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these purported defects in any way prejudiced petitioners.

The detailed opening statement by defense counsel makes

it clear that the defense was well aware of the nature of

the case against petitioners and suggests that discovery

motions would have served no useful purpose. Similarly,

in light of the strength of the government's direct case, a

motion for a directed verdict of acquittal would have been

a mere formality, with no real prospect of success. And

the failure to request a poll of the jury after the return of

the verdict is easily explained by the fact that the clerk

conducted a poll, making any request unnecessary (Tr.

776-778).

Both petitioners additionally contend that the inetfec-

tiveness of their representation was manifested by their

counsels’ failure to seek suppression of prosecution

evidence acquired through electronic surveillance. The

only evidence of this nature presented by the government

was the recorded telephone conversation between Agent

Segar and Joseph Boyd, a drug distributor and associate

of the Dinkos (Tr. 263-264, 268). But such a motion

would plainly have been futile. It is well established that a

government agent's consent to recording a conversation of.

his with another party obviates the need for prior court

authorization. 18 U.S.C. 2511(2)(c); see United States v.

White, 401 U.S. 745, 751 (1971); United States v. Ryan,

548 F. 2d 782, 787-788 (9th Cir. 1976), cert. denied, 429

U.S. 939 (1977); United States v. Bloom, 538 F. 2d 704,

711 (Sth Cir.), cert. denied, 429 U.S. 1074 (1976).

Moreover, neither petitioner would have standing to

move for the suppression of the conversation between

Boyd and Agent Segar. The failure to make hopeless

motions does not establish ineffective assistance of

counsel. See, e.g., United States v. Yanishefsky, 500 F. 2d

1327 (2d Cir. 1974); United States v. Martin, 489 F. 2d

674 (9th Cir. 1973), cert. denied, 417 U.S. 948 (1974);

United States v. Smith, 551 F. 2d 348, 353-354 & n.7

(D.C. Cir. 1976); Cheelev v. United States, 535 F. 2d 934,

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936 (Sth Cir. 1976). In sum, petitioners have failed to

show that their representation was not within the “range

of competence demanded of attorneys in criminal cases,” .

McMann v. Richardson, 397 U.S. 759, 771 (1970).

Because petitioners have not shown their representation

to have been inadequate in any significant respect, this

case does not present an appropriate occasion for

resolving the conflict among the various courts of appeals

regarding the standard for testing the adequacy of

representation in criminal cases. Even assuming that the

difference in the standard reflects more than merely a

difference in verbal formulation, the performance of

counsel in this case would apparently have satisfied even

the assertedly more rigorous “reasonably competent”

assistance standard employed in some circuits.®

‘This is the formulation of the test adopted by four circuits. United

States v. DeCoster, 487 F. 2d 1197, 1202 (D.C. Cir. 1973); Marzullo

¥. Maryland, 561 F. 2d 540, 543 (4th Cir. 1977), cert. denied, May 1,

1978 (No. 77-784); United States v. Fessel, 531 F. 2d 1275, 1278 (Sth

Cir. 1976); United States v. Easier, 539 F. 2d 663. 665-666 (8th Cir.

1976). In addition to the Second Circuit, the First and Tenth Circuits

adhere to the traditional “farce and mockery” standard. United States

Vv. Madrid Ramirez, 535 F. 2d 125, 129-130 (1st Cir. 1976); Gillihan v.

Rodriguez, 551 F. 2d 1182, 1187 (10th Cir.), cert. denied, 434 U.S.

845 (1977). The Third Circuit requires that counsel exercise the level

of skill and knowledge customary to the time and place of

representation (Moore v. United States, 432 F. 2d 730, 736 (1970)),

and tue Seventh requires representation exceeding minimum

standards of professional competency (United States v. Brugger, 549

F. 2d 2, 4, (7th Cir). cert. denied, 431 U.S. 919 (1977)). The Ninth

Circuit has not yet settled on a formulation. Compare Saunders v.

Eyman, No. 75-3485 (April 18. 1977) (farce and mockery test) with

Cooper Vv. Fitzharris, 551 F. 2d 1162. 1165-1166 (1977) (reasonably

effective assistance), rehearing en banc granted.

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CONCLUSION

The petitions for a writ of certiorari should be denied.

Respectfully submitted.

NOVEMBER 1978

DOJ-1978-11

Wave H. McCreer, Jr.

Solicitor General

PHittiep B. HEYMANN

Assisstant Attorney General

JEROME M. Fett

CHRISTIAN F. VISSERS

Attorneys